Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Wednesday, March 14, 2012

NEW YORK UNEMPLOYMENT INSURANCE HEARINGS - CREDIBILITY ISSUES

An Appeal Board case discussing credibility is set forth here:

"Mailed and Filed: JULY 17, 2009

IN THE MATTER OF: Appeal Board No. 545733

PRESENT: TANYA R. DANIEL, EILEEN M. LONG CHELALES MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 5, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by CARRIER CLEARING SERVICES prior to October 5,2008, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing. The Administrative Law Judge held hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and the employer. By decision filed March 30, 2009 (), the Administrative Law Judge sustained the initial determination.The claimant appealed the Judge's decision to the Appeal Board.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a driver's helper for about two years through October 4, 2008. He is not an alcoholic. The employer's rule prohibits the consumption of alcohol during working hours. A driver to whom the claimant was assigned complained that on October 2, 2008, the claimant had been drinking on the job.The claimant was not drinking while at work that day. The employer discharged the claimant because the employer believed that the claimant had been drinking on the job.

OPINION: The credible evidence establishes that the claimant was not drinking while in the performance of his duties on October 2, 2008. The claimant and his witness and the employer's witnesses have agreed on very little in their testimony. As the Administrative Law Judge decision stated, "Hearsay evidence cannot prevail against sworn testimony when there is nothing in the record tending to impeach the sworn testimony." (See Matter of Perry, 37 AD2d 367). However, "While credibility determinations by an ALJ are entitled to considerable weight, the Board is not bound thereby and is entitled to pass on issues of credibility." (See Matter of Donato, 176 AD2d 1102). We do not assess credibility between the claimant and the employer's witness over whether the claimant was warned in 2007 for a similar incident because such a warning would only be relevant if the claimant committed the final incident. Further, we do not assess credibility between the claimant and his witness and the employer's witness over whether the bottles found in the 2007 incident belonged to the claimant and whether the claimant made an admission to this effect because even if we were to conclude that the claimant had owned them and had admitted this to the employer's witness, such a history does not inexorably lead us to the conclusion that the claimant was drinking on the job during the final incident. Although the employer was represented by counsel at both hearings, and produced numerous witnesses, the employer did not produce one with firsthand knowledge of the final incident. The claimant is, thus, the only individual to give firsthand testimony concerning the final incident. His denial is credible, on this record, and, as a result, we have found that the claimant was not drinking while at work on October 2, 2008. Accordingly, we conclude that the claimant's actions do not rise to the level of misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.The initial determination, disqualifying the claimant from receiving benefits effective October 5, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to October 5, 2008, cannot be used toward the establishment of a claim for benefits,is overruled.The claimant is allowed benefits with respect to the issues decided herein.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/